Law Commons^™

Worker Well-Being In The 21st Century: Addressing The Psychosocial Context Of Work, Barbara Fick

Journal Articles

The world of work has undergone significant change since the days when nation-states first began addressing the issue of worker well-being. Early legal responses (such as worker compensation laws and health and safety regulations) focused on the physical environmental hazards to which workers were subjected, e.g. unsafe machinery or exposure to toxic chemicals. The transformation in the nature of work to a service-oriented economy has led many to rethink the types of hazards to which workers are exposed. Recent research has focused on the psychological and social environment in the workplace and how that may contribute to undermining worker health. …

Not Just Collective Bargaining: The Role Of Trade Unions In Creating And Maintaining A Democratic Society, Barbara Fick

Journal Articles

This essay addresses the historical and contemporary roles which trade unions have played in creating conditions necessary for democracy to flourish. Their effectiveness in fulfilling these roles is due in large measure to the organizational characteristics which make trade unions the archetypal civil society organization: democratic representation, demographic representation, financial independence, breadth of concerns and placement within society. This essay explores these aspects of the trade union movement and suggests that advocates for democracy have cause for concern in the absence of a vibrant, and independent, domestic trade union movement.

The Appropriations Power And Sovereign Immunity,, Jay Tidmarsh, Paul F. Figley

Journal Articles

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

An Appropriate Focus On War, Mary Ellen O'Connell

Journal Articles

This paper is part of book discussion featuring the 2009 Winner of the ASIL Certificate of Merit for Creative Scholarship--The Historical Foundations of World Order: The Tower and the Arena, by Douglas M. Johnston.

This panel was convened at 1:00 pm, Thursday, March 26, 2009 by its moderator, Devashish Krishan of Baker Botts LLP, who introduced the panelists:

• David Bederman, Emory University School of Law
• Tai-Heng Cheng, New York Law School
• John Crook, George Washington University Law School
• Mary Ellen O'Connell, University of Notre Dame Law School

The full issue of the proceedings is available via Oxford University Press

Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer

Journal Articles

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that …

Profiling Minority Law Librarians: An Update, Dwight B. King, Rhea Ballard-Thrower, Grace M. Mills

Journal Articles

This is a 2007 update of a survey of minority law librarians first conducted in 1992. It offers a recent profile of our minority colleagues, enabling one to see how things have changed - or remained the same - over the course of fifteen years.

Federalization In Information Privacy Law, Patricia L. Bellia

Journal Articles

In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of stronger state regulation. That conclusion, though narrow, rests on descriptive and normative claims with broad implications for the state-federal balance in information privacy law. Descriptively, Professor Schwartz sees the current information privacy law landscape as the product of successful experimentation at the state level. That account, in turn, fuels his normative claims, and in particular his sympathy with theories of competitive …

Clarence X?: The Black Nationalist Behind Justice Thomas's Constitutionalism, Stephen F. Smith

Journal Articles

The opinions of Justice Thomas reflect a jurisprudence that is uniquely his own. His well-known commitment to textualism and originalism combines with a weak commitment to stare decisis on constitutional questions. This often puts Thomas at odds with Justice Scalia and other Justices who are far more willing to defer to precedents with which they disagree. The most distinctive aspect of Thomas's jurisprudence, however, involves cases of particular concern to black Americans. In these cases, his originalism and textualism are powerfully supplemented by another -ism—namely, "black nationalism."

Throughout his tenure, Justice Thomas has repeatedly explored the implications of controversial rulings …

The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock

Journal Articles

Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either …

The Effectiveness Of Biodiversity Law, John C. Nagle

Journal Articles

The Endangered Species Act (ESA) has generated a heated debate between those who believe that the law has succeeded and those who believe that the law has failed. The resolution to that debate depends upon whether the law’s stated purposes or some other criteria provide the basis for judging a law’s effectiveness. Meanwhile, since the enactment of the ESA in 1973, biodiversity protection has received growing attention in the nations of southeastern Asia. So far, the law has been much less effective in protecting Asian biodiversity from habitat loss, commercial exploitation, and other threats, yet southeastern Asia’s biodiversity law has …

Response To Nicholas Boyle, O. Carter Snead

Journal Articles

Response to Nicholas Boyle’s talk “God, Sex, and America: From Decline of the Common Morality to the Emergence of a Global Ethical Life” at The Catholic University of America Center for Law, Philosophy and Culture’s Symposium “A Common Morality for the Global Age: In Gratitude for What We Are Given.”

Land Trusts That Conserve Communities, James J. Kelly

Journal Articles

Much has been written about land trusts that conserve wilderness, agriculture or other environmentally beneficial uses that would be threatened by unfettered development. In the context of inner-cities, Community Land Trusts (CLTs) conserve neighborhoods. Like their environmental and agricultural counterparts, CLTs employ use restrictions to prioritize communally beneficial development. Conserving communities, however, requires other legal tools as well. CLTs create and sustain permanently affordable homes to break the market’s bias toward socioeconomic homogeneity. CLTs also make room, literally, for green space, sites of shared culture and other productive activities that the market tends to commercialize or marginalize. By sustaining a …

Public Bioethics And The Bush Presidency, O. Carter Snead

Journal Articles

Public bioethics figured prominently during the tenure of President George W. Bush. This Article explores the Bush legacy in this domain. It begins by articulating and examining the grounding norms of President Bush’s approach to public bioethics. Next, it analyzes how these norms were applied to concrete areas of concern. Building on this analysis, the next section reflects on what the President’s actions illustrate about the capacity of the Executive Branch to shape public bioethics. The Article concludes with a brief discussion of the possible metrics by which the Bush Administration’s efforts might be judged, and then offers several assessments …

H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, John M. Finnis

Journal Articles

This essay offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963).

A Hands-Off Approach To Religious Doctrine: What Are We Talking About?, Richard W. Garnett

Journal Articles

At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”

This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal …

Homes Affordable For Good: Covenants And Ground Leases As Long-Term Resale-Restriction Devices, James J. Kelly

Journal Articles

Covenants and ground leases have been, and continue to be, used to create shared spaces that are fundamentally, and often invidiously, exclusive. Famously made a dead letter in the case of Shelley v. Kraemer, covenants banning resale to nonwhite households put the force of law behind the segregated birth of America’s suburbs. Today, gated residential communities and shopping malls assure a degree of class exclusivity through covenants and commercial ground leases, respectively. These same legal mechanisms, however, are now deployed to assure long-term inclusion as well.

Developers of affordable housing are creating homes that are not only beneficial to the …

Private Norms And Public Spaces, Nicole Stelle Garnett

Journal Articles

This Essay explores the role of private norms in the allocation of urban public spaces as well as local governments' efforts to enforce these norms. The Essay was prepared for the 2008 Brigham-Kanner Property Rights Conference, William and Mary School of Law, as a tribute to Robert Ellickson. community policing, informal norms

Trademark Use And The Problem Of Source, Mark P. Mckenna

Journal Articles

This Article mediates a scholarly debate regarding the existence and desirability of a "trademark use" doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff's prima facie case because trademark use can be determined only from the perspective of consumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff's mark only by asking whether consumers …

Testing Modern Trademark Law's Theory Of Harm, Mark Mckenna

Journal Articles

Modern scholarship takes a decidedly negative view of trademark law. Commentators rail against doctrinal innovations like dilution and initial interest confusion. They clamor for clearer and broader defenses. And they plead for greater First Amendment scrutiny of various applications of trademark law. But beneath all of this criticism lies overwhelming agreement that consumer confusion is harmful. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between types of relationships about which consumers might be confused. Failure to differentiate between these different relationships has enabled trademark …

The Limitations Of Majoritarian Land Assembly, Daniel B. Kelly

Journal Articles

In their article, Land Assembly Districts, Professors Michael Heller and Rick Hills address the collective action problem arising from excessively fragmented land. They propose an innovative solution: Land Assembly Districts (or LADs). In this Article, I raise several concerns regarding LADs in particular and majoritarian land assembly in general. LADs rely on majority voting by a neighborhood's existing owners. Yet majority voting, coupled with the possibility of heterogeneity, means that LADs may both approve socially undesirable assemblies and disapprove socially desirable ones. LADs also permit owners to bargain over a project's surplus. But such bargaining creates additional costs for developers, …

Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead

Journal Articles

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …

Response To Michael Sandel, Stephen F. Smith

Journal Articles

Professor Michael J. Sandel has treated us to an elegant argument against efforts by athletes to use medicine to "enhance" their bodies or by parents, in effect, to genetically engineer their children. I cannot agree with him more that "playing God" (my phrase, not his) in these ways is fundamentally an exercise in hubris, a rejection of the gifts that we have been given. I cannot improve on Professor Sandel's presentation of his argument. Unlike some Supreme Court Justices, I know that I am not a philosopher. Having said that, one of the joys of being a law professor is …

Religious Liberties: The International Religious Freedom Act, Richard W. Garnett, Thomas F. Farr, T. Jeremy Gunn, William L. Saunders

Journal Articles

MR. SAUNDERS: Welcome to this panel, put on by the Religious Liberties Practice Group. Any of you who would like to join that Practice Group, you are cordially invited to do so. Welcome to the Federalist Society Annual Convention. My name is Bill Saunders. I am a Senior Fellow at the Family Research Council, and I am the Chairman of the Religious Liberties Practice Group at the Federalist Society.

Our aim today is: to talk about religious freedom, to talk about whether it should be an aspect of U.S. foreign policy, how best to make it so if you believe …

Taking Strickland Claims Seriously, Stephen F. Smith

Journal Articles

Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 688 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.

This Essay canvasses a line …

The Securities Laws And The Mechanics Of Legal Change, Barry Cushman

Journal Articles

This essay, prepared for the Virginia Law Review symposium marking the 75th anniversary of the Securities Exchange Commission, explores the mechanisms through which the Roosevelt Administration secured the Supreme Court's approval of various features of the New Deal's securities law program.

An Alternate Approach To Channeling?, Mark P. Mckenna

Journal Articles

Intellectual property law has developed a variety of doctrines to police the boundaries between various forms of protection. Courts and scholars alike overwhelmingly conceive of these doctrines in terms of the nature of the objects of protection. The functionality doctrine in trademark law, for example, defines the boundary between trademark and patent law by identifying and refusing trademark protection to features that play a functional role in a product’s performance. Likewise, the useful article doctrine works at the boundary of copyright and patent law to identify elements of an article’s design that are dictated by function and to channel protection …

International Human Rights Law And Security Detention, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly

Journal Articles

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is pretextual. This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site …

The Nobel Effect, Roger P. Alford

Journal Articles

For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or "norm cascades"), and norm internalization. As such, constructivism treats international law as a dynamic process in which "norm entrepreneurs" interact with state actors …